State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1322

State of Minnesota,
Respondent,

vs.

Jose Alarcon,
Appellant.

Filed August 21, 2023
Affirmed
Gaïtas, Judge

Steele County District Court
File No. 74-CR-20-1076

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

Daniel McIntosh, Steele County Attorney, Owatonna, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Adam Lozeau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Gaïtas, Judge; and Florey,
Judge.
∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
GAÏTAS, Judge
Appellant Jose Alarcon appeals his convictions, following a jury trial, for attempted
third-degree criminal sexual conduct and electronic solicitation of a child. He argues that
the district court erred in denying his pretrial motion to suppress evidence after determining
that a police officer had a reasonable and articulable suspicion of criminal activity that
justified the officer’s decision to seize him. Because the district court did not err when it
denied Alarcon’s motion to suppress, we affirm.
FACTS
A late-night encounter with a police officer in a parking lot ultimately led to
Alarcon’s arrest for sexually soliciting a 13- year-old girl earlier in the day. Following
Alarcon’s arrest, respondent State of Minnesota charged him with third-degree criminal
sexual conduct and electronic solicitation of a child. Alarcon filed a motion to suppress
the evidence, asserting that the police officer had illegally seized him during the encounter
in the parking lot. The district court presided over an evidentiary hearing on Alarcon’s
motion.
At the hearing, the officer testified that, while patrolling at approximately
12:45 a.m., he received a report regarding a young teenager who was solicited for sexual
activity. According to the officer, the allegations were “very similar” to a report he had
received earlier in the day.
He proceeded to respond to the report, but his attention was soon drawn to a silver
Chevrolet pickup truck, which slowly drove through a closed gas station parking lot. The
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pickup truck did not approach the gas pumps but instead continued driving slowly into
another nearby parking lot for several closed businesses. According to the officer, the
pickup truck parked in an “out of the way” spot and then its headlights turned off.
The officer testified that he had received information about a stolen silver Chevrolet
pickup truck earlier in the evening. He noted that the stolen pickup truck had a “topper”
on it, and the pickup truck in the darkened parking lot did not. But the officer explained
that a topper can be removed. Based on the reported theft of a similar vehicle, the officer
decided to further investigate the pickup truck.
Without using his squad car lights, the officer entered the parking lot. He drove
toward the pickup truck and parked behind it, leaving enough room for the pickup truck to
back out. The officer testified that he intended to run the pickup truck’s license plate to
determine whether it was the stolen vehicle. But before he could run the plate, a man,
ultimately identified as Alarcon, exited the pickup truck and approached the officer’s squad
car.
The officer testified that Alarcon’s conduct put him “on alert” because, in his
experience, when a suspect exits a vehicle, it suggests the suspect is attempting to distance
from “whatever’s going on [in the vehicle].” Given this concern, the officer got out of his
squad car to speak with Alarcon. Alarcon told the officer that the pickup truck was not
working properly, and they briefly discussed the alleged problem with the vehicle. The
officer noticed that Alarcon repeatedly turned his head to look around. He thought Alarcon
seemed nervous and “fidgety.” The officer testified that this conduct also put him “on
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alert” because, in his experience, fidgeting can be a sign that a suspect will flee or return
to a vehicle to “get some kind of who knows what[].”
Based on the officer’s observations, he asked Alarcon to provide his driver’s license.
Alarcon complied and produced a driver’s license.
According to the officer, when he saw the name on the driver’s license—Jose
Alarcon, Jr.—he wondered whether Alarcon was the individual involved in the solicitation
offenses. The officer recalled that the suspect in the report from earlier in the day had used
a name containing “junior.”
When backup law enforcement arrived, the officer who stopped Alarcon further
investigated both the vehicle theft and the solicitation offense. The officer learned that
Alarcon’s pickup truck, which was a 2012 model, was not stolen; the vehicle that had been
reported stolen was a 2011 model of the same pickup truck. But the officer discovered that
the suspect in the solicitation incident had used the name “Joe Junior” and drove a silver
pickup truck. The officer ultimately arrested Alarcon in connection with that offense.
During the evidentiary hearing, the state introduced video from the officer’s squad
car camera and body camera. Those videos show Alarcon’s driving conduct and the
officer’s initial interaction with Alarcon.1
Following the evidentiary hearing, the district court denied Alarcon’s suppression
motion in a written order. The district court credited the officer’s testimony about the
encounter with Alarcon, including the officer’s observations based on his training and

1 Two other police officers testified at the evidentiary hearing, but their testimony is not
relevant to the issues on appeal, and we do not summarize it here.
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experience. And the district court determined that the officer had a reasonable and
articulable suspicion that Alarcon was involved in criminal activity, which justified an
investigatory seizure.
Alarcon had a jury trial, and the jury found him guilty of both attempted third-degree
criminal sexual conduct and electronic solicitation of a child. The district court sentenced
Alarcon to 71 months in prison.
Alarcon appeals.
DECISION
Alarcon argues that the district court erred in denying his motion to suppress the
evidence. According to Alarcon, the police officer seized him without a lawful basis when
the officer asked him for his driver’s license during their encounter in the parking lot.
Alarcon contends that, because the officer did not have a reasonable and articulable
suspicion of criminal activity, the request for his driver’s license violated the federal and
state constitutions, requiring suppression of the resulting evidence.
In reviewing a district court’s order on a motion to suppress, the appellate court
reviews factual findings for clear error and legal conclusions de novo. State v. Diede, 795
N.W.2d 836, 843 (Minn. 2011). “Findings of fact are clearly erroneous if, on the entire
evidence, [the appellate court is] left with the definite and firm conviction that a mistake
occurred.” State v. Andersen, 784 N.W.2d 320, 334 (Minn. 2010). Whether an officer had
a reasonable, articulable suspicion of criminal activity is a question of law that is reviewed
de novo. State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999).
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The Fourth Amendment of the United States Constitution, and article I, section 10
of the Minnesota Constitution, prohibit unreasonable searches and seizures. Warrantless
searches and seizures are unreasonable under both the state and federal constitutions unless
a recognized warrant exception applies, Coolidge v. New Hampshire , 403 U.S. 443, 454-
55 (1971); State v. Ortega, 770 N.W.2d 145, 149 (Minn. 2009), and the state must show
that such an exception applies, State v. Licari, 659 N.W.2d 243, 250 (Minn. 2003).
One exception to the warrant requirement permits limited investigatory seizures.
State v. Askerooth, 681 N.W.2d 353, 363 (Minn. 2004). Under this exception, a police
officer may briefly detain an individual when the officer “has a reasonable, articulable
suspicion that criminal activity is afoot.” State v. Timberlake, 744 N.W.2d 390, 393 (Minn.
2008) (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (citing Terry v. Ohio, 392
U.S. 1, 30 (1968))). There is a reasonable, articulable suspicion if “the police officer [is]
able to point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.” Terry , 392 U.S. at 21. The
“reasonableness inquiry considers the ‘totality of the circumstances,’ including the special
training, experience, and ability of law enforcement officers to make inferences and
deductions beyond that of the average person.” State v. Sargent, 968 N.W.2d 32, 38-39
(Minn. 2021) (quoting State v. Flowers, 734 N.W.2d 239, 251-52 (Minn. 2007)).
“To determine whether the officer’s actions meet an objective standard of
reasonableness the court should ask whether with the facts available to the officer at the
moment of the seizure or search, would a person of reasonable caution believe that the
action taken was appropriate.” State v. Othoudt, 482 N.W.2d 218, 223 (Minn. 1992). “The
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test for appropriateness, in turn, is based on a balancing of the government’s need to search
or seize ‘and the individual’s right to personal security free from arbitrary interference by
law officers.’” Askerooth, 681 N.W.2d at 365 (quoting United States v. Brignoni-Ponce,
422 U.S. 873, 878 (1975)). And “[f]inally, it is the state’s burden to show that a seizure
was sufficiently limited to satisfy these conditions.” Id.
However, not all encounters between the police and citizens constitute investigatory
seizures. In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (citing Terry, 392
U.S. at 19 n.16). To decide whether there was a seizure, a court must consider “whether,
looking at all of the facts, the conduct of the police would communicate to a reasonable
person in the defendant’s physical circumstances an attempt by the police to capture or
seize or otherwise to significantly intrude on the person’s freedom of movement.” State v.
Hanson, 504 N.W.2d 219, 220 (Minn. 1993) ; accord United States v. Mendenhall , 446
U.S. 544, 554-55 (1980).
An officer’s request for identification does not automatically constitute a seizure.
State v. Pfannenstein, 525 N.W.2d 587, 58 9 (Minn. App. 1994), rev. denied (Minn.
Mar. 14, 1995). But a seizure may still occur if an officer exhibits a show of authority such
that a reasonable person would not feel free to decline the request for identification. Id.
Although the parties agree on appeal that the officer seized Alarcon at some point
during the encounter in the parking lot, they dispute when the seizure occurred. As noted,
8
Alarcon contends that the officer seized him by requesting his driver’s license. T he state
argues that the seizure occurred after the officer had Alarcon’s driver’s license in hand.2
We need not decide this question. Even assuming that Alarcon is correct—that a
seizure occurred when the officer requested Alarcon’s driver’s license—we conclude that
it was supported by a reasonable and articulable suspicion of criminal activity.
Based on the totality of the circumstances that existed before the officer requested
Alarcon’s driver’s license, the officer had an objectively reasonable and articulable
suspicion that Alarcon was involved in criminal activity. The officer observed that Alarcon
engaged in suspicious driving conduct at a late hour; Alarcon was driving a pickup truck
that largely matched the description of a reported stolen vehicle; Alarcon parked the pickup
truck in a parking lot for businesses that were closed; Alarcon abruptly exited his car when
the officer pulled in to the parking lot behind him, suggesting that there was possibly
something suspicious in the car; and Alarcon’s behavior was nervous and fidgety, alluding
that Alarcon might flee or do something worse. Together, these circumstances objectively
indicated that criminal activity was afoot. Because the officer had an objectively
reasonable suspicion that Alarcon was engaged in criminal activity, the officer had a
constitutionally valid basis to detain Alarcon for further investigation. Thus, even

2 The district court did not expressly address the question of when the initial seizure
occurred, but instead determined that, when the encounter ultimately shifted from a
voluntary interaction to a seizure, it was justified by a reasonable and articulable suspicion
of criminal activity. This determination was consistent with the argument that Alarcon
made below. At the suppression hearing, Alarcon argued that “the seizure . . . should have
stopped once the officer found out the . . . truck was not the one that was reported stolen
and that the expansion of this investigation was against [Alarcon’s] rights.”
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assuming without deciding that the officer’s request for Alarcon’s driver’s license was an
investigative stop, the officer’s conduct was lawful.
Alarcon argues that the factual circumstances, when viewed in isolation, did not
create a reasonable suspicion of criminal activity. He cites caselaw recognizing that
driving conduct may not constitute a reasonable suspicion of criminal activity, that vague
allegations of a stolen vehicle may not support a seizure, and that nervousness alone may
not justify an investigatory stop. But, as noted, the law requires us to consider the totality
of the circumstances, and not isolated facts, when deciding whether an investigatory stop
was lawful. Sargent, 968 N.W.2d at 38. Considering the circumstances together, as we
must, we conclude that the officer’s observations created an objectively reasonable
suspicion of criminal activity.
Alarcon also argues that, even considered together, the factual circumstances in his
case did not establish reasonable suspicion. He identifies two Minnesota Supreme Court
cases that he contends support his position.
Alarcon points to State v. Burbach, where the supreme court determined that an
officer did not have a reasonable and articulable suspicion of criminal activity sufficient to
justify a search for drugs following a legal traffic stop. 706 N.W.2d 484, 491 (Minn. 2005).
There, the officer testified that he suspected drug activity based on the driver’s violation of
the posted speed limit and her nervousness, and the officer recalled that he had seen the
driver’s name and license plate number on a list of suspicious vehicles. Id. at 489-90. The
supreme court concluded that the officer’s observations were “weak evidence” of drug
possession at best and did not support an objectively reasonable suspicion of drug
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possession sufficient to expand the scope of the stop by requesting the driver’s consent to
search the car. Id. at 490. Alarcon also contends that his case is similar to Diede, where
the supreme court again considered whether an officer had a reasonable and articulable
suspicion of drug activity that supported the officer’s decision to expand a lawful stop into
a more intrusive drug investigation. 795 N.W.2d at 840-41. The supreme court determined
in Diede that the officer did not have a sufficient basis to suspect that a driver was involved
in drug activity based solely on the conduct of her passenger, who was arrested during the
stop for previous drug sales and may have tossed something from his pocket into the
vehicle immediately before his arrest. Id. at 843-46.
Neither Burbach nor Diede affect our analysis here, however. The decisions in
those cases were limited to the specific factual circumstances presented. Here, the totality
of the specific factual circumstances provided the officer with an objectively reasonable
and articulable suspicion that Alarcon was engaged in criminal activity.
Likewise, we are not persuaded by Alarcon’s argument that the officer’s decision to
detain him was unlawful because there were potential innocent explanations for his
suspicious activity. The case that Alarcon cites for this proposition, State v. Baumann ,
does not require a police officer to rule out possible innocent explanations for factual
circumstances that reasonably suggest criminal activity. 759 N.W.2d 237, 240 (Minn. App.
2009), rev. denied (Minn. Mar. 31, 2009). Indeed, Baumann, implicitly rejected this
argument and concluded that there was a reasonable and articulable suspicion of criminal
activity notwithstanding the possibility of an innocent explanation for the facts. Id. at 241.
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Finally, Alarcon argues that two of the district court’s factual findings in its order
denying suppression were clearly erroneous. Alarcon contends that the district court erred
in finding that Alarcon’s actions in exiting the pickup truck and approaching the officer
“prompted [the officer] to request [Alarcon]’s ID.” And he asserts that the district court
erred in finding that he parked “behind” the gas station in a parking lot that was “out of the
way.” But based on our review of the evidence, including the videos from the squad car
and the officer’s body camera, we determine that these findings are supported by the record
and are not clearly erroneous.
In sum, applying de novo review, we determine that the officer had a lawful basis
for an investigative stop at the time he requested Alarcon’s driver’s license because the
facts available to the officer created an objectively reasonable and articulable suspicion
that Alarcon was involved in criminal activity. Because the officer had a lawful basis to
perform an investigative stop, his conduct did not violate Alarcon’s constitutional rights,
and the district court did not err in denying Alarcon’s motion to suppress the evidence.
Affirmed.